Judicial accountability Bill, cure worse than disease: Justice Shah
November 14, 2010
Without transparency, there could be no accountability
Highlighting serious lacunae in the proposed Judicial Standards and Accountability Bill, 2010, the former Chief Justice of the Delhi and Madras High Courts Justice of Delhi and Madras High Courts Ajit Prakash Shah on Saturday cautioned that the measure was an example of cure being worse than the disease.
“There is a complete misalignment and a mismatch between the present system of judicial appointments and core values of judicial accountability.”
He was delivering the keynote address after inaugurating a two-day seminar on “Strengthening Democracy: Role of Judiciary” organised here by the International Centre Goa (ICG) in association with the Media Information and Communication Centre of India, the Friedrich Ebert foundation-India and the Goa High Court Bar Association.
Emphasising the need for accountability, Justice Shah said that without transparency, there could be no accountability; secrecy was only the preserve of a dictatorship.
Analysing judicial accountability and its nuances, Justice Shah said there must be a balance between the competing principles of judicial independence, on the one hand, and accountability and transparency, on the other.
His primary objection is that the Bill seeks to provide a straightjacket definition of “misbehaviour” under Section 2(j), which tends to lose its elasticity and become both under-inclusive and over-inclusive. A minor, inadvertent breach of judicial standards could constitute misconduct, and in so far as the definition is exhaustive, it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision.
Secondly, he said, the Bill tended to render the Oversight Committee just a post office referring each complaint to the Scrutiny Panel. This was likely to lead to multiplicity of complaints against judges and also a colossal waste of time.
Justice Shah's major objection is to the composition of the Scrutiny Panel which consists of three members, two of whom would be judges sitting in the same court as the judge against whom a complaint has been made. It would be difficult for judges to dispassionately decide a case against one of their own colleagues and sitting with them day in, day out.
Also, the composition and tenure of the Investigation Committee was undefined. Theoretically, therefore, it was possible for a layperson without any knowledge, experience and standing to be part of an inquiry panel against a sitting judge of a superior court.
Justice Shah said the Bill would create an atmosphere of total secrecy, more regressive than the present system, and there did not appear to be any rational reason for the change.
The idea of “minor” punishment was unworkable and it had the potential to seriously undermine judicial status.
Only binary system will work
A situation where sitting judges were publicly censured but they were still sitting on the Bench and deciding cases would damage the credibility of the entire system.
“This is an area where only a binary system of punishment can work. Either the judge is guilty and must be impeached, or he is not, and no action must be taken against him,” Justice Shah said, observing that the challenge was to develop mechanisms of accountability that did not undermine judicial independence.
Later speaking on ‘Accountability vs. Independence of Judiciary', Supreme Court lawyer Prashant Bhushan described the Bill as a “cosmetic exercise designed to fool the people into believing that some kind of exercise was conducted by the government to clean up corruption in the judiciary.” The outcome of it would be absolutely “zero.”
“If the government was serious on judicial accountability, then why is it not opening out consultations with public,” asked Mr. Bhushan and dubbed any exercise of consultations with judges “bogus” because judges had a vested interest in the Bill.
Goa Speaker Pratapsingh Rane and ICG Director Nandini Sahai were present.